Citation Nr: 0739379
Decision Date: 12/14/07 Archive Date: 12/19/07
DOCKET NO. 04-39 014 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Newark, New
Jersey
THE ISSUE
Entitlement to compensation under 38 U.S.C.A. § 1151 for
osteoporosis of the pelvis, hip, and lumbar spine resulting
from VA treatment for renal stones.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. Riley, Associate Counsel
INTRODUCTION
The veteran served on active duty from November 1953 to
November 1956. This case comes before the Board of Veterans'
Appeals (Board) on appeal from an April 2003 rating decision
issued by the Department of Veterans Affairs (VA) Regional
Office (RO) in Newark, New Jersey, which, in pertinent part,
denied entitlement to benefits under 38 U.S.C.A. § 1151 for
the above condition.
In December 2004, the veteran provided testimony at a hearing
before a Decision Review Officer (DRO) at the Newark RO. A
transcript of this hearing is of record.
The Board notes that in March 2007, after the appeal was
certified to the Board, the veteran submitted an additional
statement with out a waiver of RO consideration. As this
statement referred to evidence and argument that had already
been submitted, there is no prejudice to the veteran by
proceeding with the adjudication of the appeal without resort
to remand to the RO for initial consideration.
The Board further notes that in the veteran's July 2000
original claim, she appears to raise the issue of whether new
and material evidence has been submitted to reopen a claim
for entitlement to service connection for a low back
disability. Similarly, in an April 2006 statement, the
veteran also appears to raise the issue of whether new and
material evidence has been submitted to reopen a claim for
entitlement to service connection for renal stones. These
claims are referred to the originating agency for the
appropriate action.
FINDING OF FACT
Osteoporosis of the pelvis, hip, and lumbar spine is not the
result of an event not reasonably foreseeable, carelessness,
negligence, lack of proper skill, error in judgment, or
similar instance of fault on the part of VA in the furnishing
of medical treatment.
CONCLUSION OF LAW
The criteria for entitlement to benefits pursuant to 38
U.S.C. § 1151 for osteoporosis of the pelvis, hip, and lumbar
spine have not been met. 38 U.S.C.A. § 1151 (West 2002); 38
C.F.R. §§ 3.358, 3.800 (2007).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West
2002 & Supp. 2007) redefined VA's duty to assist the veteran
in the development of a claim. VA regulations for the
implementation of the VCAA were codified as amended at 38
C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007).
Under the VCAA, VA must inform the claimant of any
information and evidence not of record (1) that is necessary
to substantiate the claim; (2) that VA will seek to provide;
(3) that the claimant is expected to provide; and (4) must
request that the claimant provide any evidence in his
possession that pertains to the claim. Pelegrini v. Principi
(Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38
U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).
In a letter issued in February 2007, subsequent to the
initial adjudication of the claim, the RO notified the
veteran of the evidence needed to substantiate her claim for
benefits under 38 U.S.C.A. § 1151 (West 2002). The letter
also satisfied the second and third elements of the duty to
notify by informing the veteran that VA would try to obtain
medical records, employment records, or records held by other
Federal agencies, but that she was nevertheless responsible
for providing any necessary releases and enough information
about the records to enable VA to request them from the
person or agency that had them.
With respect to the fourth element, the May 2005 VCAA letter
contained a notation that the veteran should provide VA with
any evidence in her possession pertinent to the claim on
appeal.
The United States Court of Appeals for Veterans Claims
(Court) has also held that the VCAA notice requirements of 38
U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five
elements of a service connection claim. Those five elements
include: 1) veteran status; 2) existence of a disability; 3)
a connection between the veteran's service and the
disability; 4) degree of disability; and 5) effective date of
the disability. Dingess/Hartman v. Nicholson, 19 Vet. App.
473 (2006).
The veteran was notified of the first three elements of the
Dingess notice by the February 2007 letter. She also
received information regarding the effective date or
disability rating elements of her claim in March 2006,
subsequent to the initial adjudication of her claim, however,
since the claim is being denied, no disability rating or
effective date will be assigned. Therefore, the veteran is
not prejudiced by the delayed notice on these elements. See
Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the
Board addresses a question that has not been addressed by the
agency of original jurisdiction, the Board must consider
whether the veteran has been prejudiced thereby).
The Duty to Assist
The VCAA also requires VA to make reasonable efforts to help
a claimant obtain evidence necessary to substantiate his
claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This
"duty to assist" contemplates that VA will help a claimant
obtain records relevant to his claim, whether or not the
records are in Federal custody, and that VA will provide a
medical examination or obtain an opinion when necessary to
make a decision on the claim. 38 C.F.R. § 3.159(c)(4).
VA has obtained records of treatment reported by the veteran,
including service medical records, records from various
federal agencies, and private medical records. Additionally,
the veteran was provided a VA examination in February 2003.
For the reasons set forth above, the Board finds that VA has
complied with the VCAA's notification and assistance
requirements. The appeal is thus ready to be considered on
the merits.
Legal Criteria
Under 38 U.S.C.A. § 1151, compensation shall be awarded for a
qualifying additional disability or a qualifying death of a
veteran in the same manner as if such additional disability
or death were service-connected.
A disability or death is a qualifying additional disability
or qualifying death if it was not the result of the veteran's
willful misconduct and it was caused by hospital care,
medical or surgical treatment, or examination furnished the
veteran under any law administered by the Secretary, either
by a Department employee or in a Department facility, and the
proximate cause of the disability or death was carelessness,
negligence, lack of proper skill, error in judgment, or
similar instance of fault on the part of the Department in
furnishing the hospital care, medical or surgical treatment,
or examination; or an event not reasonably foreseeable. 38
U.S.C.A. § 1151 (West 2002).
The veteran filed her claim for compensation under the
provisions of 38 U.S.C. § 1151 in July 2000. Because the
claim was filed after October 1, 1997, the version of 38
U.S.C. § 1151 in effect prior to October 1, 1997, requiring
only that additional disability be "the result of" VA
hospital care, medical or surgical treatment, or examination
is not applicable. See VAOPGCPREC 40-97. All Section 1151
claims which were filed after October 1, 1997, must be
adjudicated under the statutory provisions currently in
effect, which essentially require a showing of negligence or
fault on the part of VA or that the claimed condition is due
to an event not reasonably foreseeable.
Analysis
The veteran contends that her osteoporosis was incurred as a
result of a low calcium, low phosphorous diet that was
prescribed by her VA doctor following treatment for renal
stones in 1957. The veteran's claims folders contains VA
hospital records from 1957 and 1958 showing treatment for
right renal and urethral calculi. While these records do not
contain evidence that the veteran was placed on a special
diet following treatment, the veteran has submitted a copy of
her diet dated from 1957. It is unclear from the face of the
documents how long the veteran was directed to stay on the
diet. The veteran has asserted that she was told to follow
this diet for the remainder of her lifetime, and she
maintains that she did so until 1997.
Outpatient treatment records from the VA Medical Center
(VAMC) show that the veteran was diagnosed with
postmenopausal osteoporosis in December 1999. A letter from
her private physician also notes that the veteran's jaw and
teeth have been weakened due to osteoporosis. In support of
her claim, the veteran submitted two statements from her
current VA physicians. The first statement, dated June 1998,
notes that the veteran followed her low calcium diet from
1957 to 1997 and that she currently has severe osteoporosis
that could have resulted from the diet. Similarly, the
second letter, dated February 2000, states the veteran is
currently being treated for osteoporosis and premature
menopause and that the combination of lack of estrogen
replacements and her low calcium diet may have contributed to
her current osteoporosis. In addition, the veteran was
provided a VA examination in February 2003. The examiner
noted that diet is an important factor in causing
osteoporosis and lack of calcium, phosphorous, and vitamin
intake may cause osteoporosis.
The Board notes that while the record contains three medical
statements finding that the veteran's osteoporosis may have
been incurred as a result of her low calcium diet prescribed
in 1957, these medical opinions are all speculative. In
Obert v. Brown, the Court held that a medical opinion
expressed in terms of "may," also implies "may or may not"
and is too speculative to establish a plausible claim.
Bostain v. West, 11 Vet. App. 11 Vet. App. 124 (1998); Obert
v. Brown, 5 Vet. App. 30 (1993). The Board also notes that
the veteran has submitted numerous authoritative writings
noting that lack of proper calcium and phosphorous intake is
an important factor in the development of osteoporosis.
Medical treatise evidence can, in some circumstances,
constitute competent medical evidence. See Wallin v. West,
11 Vet. App. 509, 514 (1998); see also 38 C.F.R. §
3.159(a)(1) [competent medical evidence may include
statements contained in authoritative writings such as
medical and scientific articles and research reports and
analyses]. However, as discussed by the Board above, the
Court has held that medical evidence that is speculative,
general or inconclusive in nature cannot support a claim.
See Obert, supra; see also Beausoleil, supra. As the
authoritative writings of record do not provide any specific
findings that the veteran's special diet caused her
osteoporosis, they are considered speculative. Finally,
assuming without conceding that the veteran followed a low
calcium diet from 1957 to 1997, the Board notes that the
record contains no medical evidence that VA's prescription of
a low calcium diet in 1957 was the result of carelessness,
negligence, lack of proper skill, an error in judgment, an
event that was not reasonably foreseeable, or any similar
instance of fault on the part of VA. Indeed, according to
the veteran's hearing testimony and written statements, the
diet was prescribed in order to treat the kidney condition
extant at the time, and to prevent recurrence thereafter,
based on the best medical knowledge available to the VA
physicians at the time.
The Board has considered the various statements submitted by
the veteran in support of the claim. However, in the absence
of evidence indicating that the veteran has the medical
knowledge or training requisite for the rendering of medical
opinions, the Board must find that her contentions with
regard to the etiology of her current disability to be of no
probative value. See Moray v. Brown, 5 Vet. App. 211 (1993);
see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992).
As the statutory provisions of 38 U.S.C.A. § 1151 have not
been met, the claim must be denied.
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page]
ORDER
Entitlement to compensation under 38 U.S.C.A. § 1151 for
osteoporosis of the pelvis, hip, and lumbar spine resulting
from VA treatment for renal stones, is denied.
____________________________________________
JONATHAN B. KRAMER
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs